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Anderson v Australian Securities and Investments Commission (No 2)

 

[2013] QCA 88

 

 

SUPREME COURT OF QUEENSLAND

 

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

DELIVERED ON:

19 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes and White JJA and Philip McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application by ASIC to vary the costs orders made on 2 November 2012 is refused.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – where appellant abandoned application to rely upon further evidence at appeal – where some submissions made to court by appellant were not accepted – where appeal was allowed – whether respondent should be ordered to pay appellant’s costs

COUNSEL:

No appearance for the first appellant
No appearance for the second appellant
No appearance for the third appellant
No appearance for the fourth appellant
No appearance for the fifth appellant, the fifth appellant’s submissions were heard on the papers
No appearance for the respondent, the respondent’s submissions were heard on the papers

SOLICITORS:

DibbsBarker for the first appellant
Brian Bartley & Associates for the second appellant
Tucker & Cowen Solicitors for the third appellant
James Conomos Lawyers for the fourth appellant
Kennedys Lawyers for the fifth appellant
Corrs Chambers Westgarth for the respondent

[1] HOLMES JA:  I agree with the reasons of Philip McMurdo J and the order he proposes.

[2] WHITE JA:  I agree with the reasons of Philip McMurdo J and the order he proposes.

[3] PHILIP McMURDO J:  On 2 November 2012, the Court allowed appeals by the five defendants in this case and ordered the respondent (“ASIC”) to pay the costs of each appellant of his or her appeal.  On 15 November, ASIC wrote to the registrar, seeking leave to make written submissions to the end of varying the costs order in favour of the appellant Mr Hutchings.  That leave was granted and ASIC and Mr Hutchings filed written submissions on the question.

[4] ASIC seeks orders that:

(a) Mr Hutchings pay ASIC’s costs of and incidental to his application to rely upon further evidence at the hearing of his appeal; and

(b) otherwise there be no order as to the costs of his appeal.

[5] The first of those orders is sought upon the basis that, when the appeal was heard, Mr Hutchings did not press the application.  It is said that the costs should therefore follow the outcome in that respect.  The costs of that application must have been but a small part of his costs of the appeal.

[6] The second order is sought upon the basis that Mr Hutchings’ arguments did not correspond with the Court’s reasons for allowing his appeal, from which ASIC submits that “it cannot be said that Mr Hutchings was successful.”  That could also be said about the other appellants.  But ASIC says that Mr Hutchings’ defence, as considered by the primary judge, was more seriously deficient than the defences of other appellants.

[7] It is correct that some of the submissions for Mr Hutchings were not accepted by this Court.  In substance however, Mr Hutchings was successful:  his appeal was allowed and he was permitted to plead his case in a way which was more favourable to him than had been ordered by the primary judge.  Ordinarily the general rule that costs should follow the event is not displaced by the fact that some of the arguments for the successful party have not been accepted.  Nor is it displaced by abandonment of an argument which the successful party had raised prior to the hearing.  In my conclusion, ASIC has shown no reason to disturb the order made in favour of Mr Hutchings.

[8] For Mr Hutchings, it was submitted that there was no power to disturb the order made on 2 November 2012, absent any circumstance which would engage either r 667 or r 668 of the Uniform Civil Procedure Rules.  It is unnecessary to consider that question given my conclusion on the merits of ASIC’s application.

[9] I would order that the application by ASIC to vary the costs orders made on 2 November 2012 be refused.  As I see it, the costs of that application would be within the costs of the appeal, which have been ordered in the appellant’s favour.

Close

Editorial Notes

  • Published Case Name:

    Anderson & Ors v Australian Securities and Investments Commission

  • Shortened Case Name:

    Anderson v Australian Securities and Investments Commission (No 2)

  • MNC:

    [2013] QCA 88

  • Court:

    QCA

  • Judge(s):

    Holmes JA, White JA, McMurdo J

  • Date:

    19 Apr 2013

Litigation History

Event Citation or File Date Notes
Primary Judgment [2012] QSC 59 21 Feb 2012 Objection by the seventh defendant to the use of an affidavit annexing affidavits from other proceedings overruled: Fryberg J.
Primary Judgment [2012] QSC 72 16 Mar 2012 Plaintiff's application for leave to proceed against the first defendant (a company in liquidation) granted: Fryberg J.
Primary Judgment [2012] QSC 74 28 Mar 2012 Certain paragraphs of defences struck out and directions made that fourth, fifth, sixth, seventh and eighth defendants to comply with UCPR pleading regime: Fryberg J.
Primary Judgment [2013] QSC 15 29 Jan 2013 Plaintiff's application for summary judgment against the first defendant refused; fifth defendant's application seeking to restrain plaintiff from obtaining summary judgment against first defendant refused: Fryberg J.
Primary Judgment [2013] QSC 280 17 Oct 2013 Declaration that notices to the fourth to eighth defendants given by the plaintiff pursuant to s 79(1) of the Australian Securities and Investments Commission Act (Cth) are invalid: Douglas J.
Primary Judgment [2013] QSC 313 11 Nov 2013 Applications to stay trial until determination of New Zealand prosecutions refused: Fryberg J.
Primary Judgment [2013] QSC 355 28 Nov 2013 Direction made that a witness answer a question: Douglas J.
Primary Judgment [2014] QSC 72 [2015] 2 Qd R 32 22 Apr 2014 Determination as to the use to which an affidavit may be put without the deponent being cross-examined in relation to it: Douglas J.
Primary Judgment [2014] QSC 204 07 Aug 2014 Determination made that witness not permitted to be cross-examined by being shown his answer to a question in an examination of him pursuant to s 597 of the Corporations Act 2001 (Cth) where he had claimed privilege against self-incrimination in that examination: Douglas J.
Primary Judgment [2016] QSC 109 23 May 2016 Primary judgment: defendants' found to have contravened ss 601FC and 601FD of the Corporations Act 2001 (Cth): Douglas J.
Primary Judgment [2017] QSC 96 26 May 2017 Declaratory relief ordered; fourth, fifth, sixth, seventh and eighth defendants ordered to pay pecuniary penalties and compensation; fourth, fifth, sixth, seventh and eighth defendants disqualified from managing any corporation; costs orders made against fourth, fifth, sixth, seventh and eighth defendants: Douglas J.
Notice of Appeal Filed File Number: Appeals 6281/17; 6289/17; 6306/17; 6319/17; 6320/17 23 Jun 2017 Appeals from [2016] QSC 109 and [2017] QSC 96.
Appeal Determined (QCA) [2012] QCA 301 [2013] 2 Qd R 401 02 Nov 2012 Appeal from [2012] QSC 74 allowed; each of the fourth, fifth, sixth, seventh and eighth defendants to be partly excused from compliance with the UCPR pleading regime: Holmes and White JJA and McMurdo J.
Appeal Determined (QCA) [2013] QCA 88 19 Apr 2013 Application by Australian Securities and Investments Commission to vary costs order in [2012] QCA 301 refused: Holmes and White JJA and McMurdo J.
Appeal Determined (QCA) [2013] QCA 357 03 Dec 2013 Appeal from [2013] QSC 313 (refusal of application to stay proceedings) dismissed: Muir and Gotterson JJA and Applegarth J.
Appeal Determined (QCA) [2018] QCA 352 18 Dec 2018 Appeals from [2016] QSC 109 and [2017] QSC 96. All appeals (and cross-appeals by ASIC) dismissed save for Appeal 6320/17 whereby appealed allowed in part with respect to the conclusion that Mr King was an officer and therefore Mr King's appeal allowed to the extent that he contravened the duties prescribed by s 601FD of the Corporations Act 2001 (Cth): Morrison and McMurdo JJA and Applegarth J.
Special Leave Granted (HCA) [2019] HCATrans 104 17 May 2019 Special leave application instituted by Australian Securities and Investments Commission against Mr King (Appeal 6320/17) granted: Bell and Keane JJ

Appeal Status

{solid} Appeal Determined (QCA) {hollow} Special Leave Granted (HCA)